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OPINION 



ATTORNEY general stanbery 



ON 



THE PRESIDENT’S POWER 


IN THE MATTER OF 


| APPOINTMENTS TO OFFICE. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE, 
1 866 . 












































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OPINION 

OF 


ATTORNEY GENERAL STANBERY 


THE PRESIDENT’S POWER 


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IN THE MATTER OF 


APPOINTMENTS TO OFFICE. 


WASHINGTON: 

GOVERNMENT PRINTING OFFICE, 
1 866 . 




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Attorney General’s Office, 

August 30, 1866. 

Hon. A. W. Randall, 

Postmaster General. 

Sir: 

I have considered the question which you have 
submitted for my opinion, that is to say, whether, 
in cases where appointments have been made of 
postmasters in the recess prior to the last session 
of the Senate, and there was a failure during the 
session to make a permanent appointment, either 
by the refusal of the Senate to confirm the 
nominee, a failure to act on the nomination, or 
other cause, the President can make another 
temporary appointment in the present recess. 

The clause of the Constitution under which 
this question arises is as follows: 

“The President shall have power to fill up all 
vacancies that may happen during the recess of 
the Senate by granting commissions, which shall 
expire at the end of their next session.” 

Upon the facts stated it does not appear that 
there was a vacancy until after the session was 
over. In the sequel I shall again refer to this 
position; but as some claim that the vacancy does 


4 


happen, within the meaning of the Constitution, 
before the recess, I propose to consider the 
general question whether the President can fill 
up a vacancy in the recess which existed in the 
prior session. 

I am not aware of any dc Jsion of the Supreme 
Court that has any direct bearing upon this ques¬ 
tion. It has, however, frequently been passed 
upon by my predecessors. 

Mr. Wirt , in 1823, Mr. Taney , in 1832, and Mr. 
Legarc, in 1841, concur in opinion that vacancies 
first occurring during the session of the Senate 
may be filled by the President in the recess. Mr. 
Mason , in a short opinion given in 1845, held that 
vacancies known to exist during the session could 
not be filled in the recess; but in a more elaborate 
opinion, written in 1846, he expresses general 
concurrence with his three predecessors. 

All these concurring opinions give a construction 
to the meaning of the words “vacancies that may 
happen during the recess of the Senate;” and, as 
I understand them, they agree that these words 
are not to be confined to vacancies which first 
occur during the recess, but may apply to vacan¬ 
cies which first occur during the session and 
continue in the recess. 

It may be well at this point to bring in review 


5 


some of the contingencies which may attend a 
vacancy in the recess which first occurred during 
the session : 

First. It may not become known until the 
recess—a contingency which often occurs by the 
death of incumbent, -t distant points, 

Second. It may have occurred by the failure of 
the Senate to act upon a nomination. 

Third. Or, upon a nomination and confirmation, 
where the party so nominated and confirmed 
refuses in the recess to accept the office 

Fourth. Or by the rejection of the nominee of 
the President in the last hour of the session. 

Fifth. Or by the failure of the President to 
make a nomination during the session or after a 
rejection of his nominee. 

You will observe that I have not put in this 
category the case stated in your letter, that is to 
say, where, after an appointment by the President 
in the recess, and a nomination at the next session, 
there is a failure of the Senate to confirm the 
nomination for want of time or any other cause. 

It is not clear that the vacancy which exists 
after the adjournment of the Senate can be said 
to have occurred during the session. The appoint¬ 
ment fills the vacancy, and the language of the 
Constitution is, that “it shall expire at the end ol 


6 


their next session.” It was upon this state of facts 
that Mr. Taney gave his opinion in 1832, and held 
on this point that “the vacancy did take place in 
the recess,” and that “the former appointment con¬ 
tinued during the session, and there was no vacancy 
until after they adjourned.” 

As this construction has been much questioned, 
I do not propose to stop upon it, but prefer to 
place my opinion on other grouno, independent of 
the question whether the vacancy first;* occurred 
during the session or during the recess. 

Those who argue for the construction that the 
vacancy to be filled by the President must first 
occur in the recess, claim that such a construction 
arises inevitably by force of the words “ all vacan¬ 
cies that may happen during the recess of the 
Senate.” They claim that a vacancy which does 
not first occur in the recess cannot be said to 
happen in the recess. It is the point of time when 
a vacancy begins that, they say, is to be considered. 
This is one reading of this section, and, so far as 
the mere letter is concerned, it is, perhaps, the 
most obvious. But even if we confine ourselves 
to this section alone, and to its literal interpretation, 
there is room for grave doubt. 

The subject-matter is a vacancy. It implies du¬ 
ration—a condition or state of things which may 


7 


exist for a period of time. Can it be said that the 
word happen, when applied to such a subject, is 
only properly applicable to its beginning? 

If this word is used in reference to an action or 
event that takes place at a punctual point of time, 
it must necessarily be confined to that special hour; 
but a vacancy is not such an event. It has a begin¬ 
ning, it is true, but it necessarily implies contin¬ 
uance. 1 1 i& precisely the same thing from the 
beginrhig to the end during the period of its du¬ 
ration. If we.mark the time of a single action, 
we say it happened at that time, for it could not 
be said to happen at any other. But when we 
speak of such a subject as a vacancy, we must use 
some other term to mark its beginning, for it may 
well be said to happen at every point of time that 
it exists. I incline to think, upon the mere words, 
that we might construe them precisely as if the 
phrase were, “If it happens that there is a vacancy 
in the recess,” or “If a vacancy happens to exist 
in the recess.” 

This, upon the words alone, was the construction 
put upon this section by Mr. Wirt, and since fol¬ 
lowed by all his successors in this office who have 
expressed an opinion on the question. 

But the rules of construction do not confine us 
to the words of the section, and do not compel 


8 


us to adopt a construction according to the mere 
letter. 

When we look to other sections of this article, 
and to the reason and policy of the enactment, all 
nice criticism must give way to more enlightened 
construction. 

It is in the arrangement of executive power that 
we encounter this question. First of all, it is the 
President who is made the recipient of this power. 
The grant is in these words: “The Executive 
power shall be vested in a President of the United 
States.” By another section it is provided that 
“he shall take care that the laws be faithfully 
executed.” 

Now, it is of the very essence of executive power 
that it should always be capable of exercise. The 
legislative power and the judicial power come into 
play at intervals. There are, or may be, periods 
when there is no legislature in session to pass laws, 
and no court in session to administer laws, and this 
without public detriment; but always and every¬ 
where the power to execute the laws is, or ought 
to be, in full exercise. The President must take 
care, at all times, that the laws be faithfully ex¬ 
ecuted. There is no point of time in which the 
power to enforce or execute the laws may not be 
required, and there should not be any point of time 


9 


or interval in which that power is dormant or in¬ 
capable of acting. 

It is in view of this necessity that another clause 
of this article makes careful provision against a 
vacancy in the office of President, by providing 
that, upon the death, resignation, or removal of the 
President from office, the powers and duties shall 
at once devolve on the Vice-President, and by 
enjoining on Congress to make further provision, 
in case of the death of the Vice-President, as to 
what other officer shall then act as President until 
another President shall be elected. 

If any one purpose is manifest in the Constitu¬ 
tion—if any one policy is clearly apparent—it is, 
that in so far as the chief or fountain of executive 
power is concerned, there shall be no cessation— 
no interval of time—when there may be an inca¬ 
pacity of action. 

But the President, although the source of execu¬ 
tive power, cannot exercise it all himself. It is 
comparatively but an infinitesimal part of all that 
is to be done or executed that he can perform. He 
must act by the agency of others. Accordingly, 
we find ample provision made for this purpose. 
The executive power vested in the President by 
the Constitution has, in many respects, an unlimited 
range, extending over a time of war as well as a 


10 


time of peace. He is made commander-in-cliief 
of the army and navy, and of the State militia 
whilst in the actual service of the United States. 
All our foreign relations are conducted by officers 
of his nomination. So, too, all our military and 
naval officers; and, finally, our civil officers every¬ 
where, whether judicial or strictly executive, are, 
with the exception of some inferior officers, to be 
nominated by him. No other branch or depart¬ 
ment of the Government shares with the President 
this power to nominate. It is true that the Presi¬ 
dent does not create the offices; that, in general, 
is part of the legislative power. But the mere 
legislative creation of an office, and the provision 
by law for the duties to be performed by the officer, 
do not put the officer in place or the law in execu¬ 
tion. No matter what may be the necessity, the 
power to fill the office is not vested in the legisla¬ 
tive department. So, too, it is equally true that 
the President could not execute the duties of the 
officer himself. He cannot sit as a judge or per¬ 
form the duties of a marshal. These, like most 
executive powers, can only be exercised by one 
agent; that is to say, by the designated officer, and 
this officer can only be put in place upon the nomi¬ 
nation of the President. 

When, then, we see that the Constitution vests 


11 


the executive power in the President, and vests in 
him alone the power to appoint officers to exercise 
the power, and requires of him alone (not of Con¬ 
gress or the Senate) that he take care that the 
laws be faithfully executed, we could hardly expect 
to find his hands tied by a section which would 
frustrate all these provisions. And yet this is the 
necessary result of the verbal construction which I 
have mentioned, for that construction prevents the 
President from filling any vacancy in any office 
during the recess of the Senate, unless it be a 
vacancy which first occurs in the recess. 

Now, when the Constitution guards with so 
much care against a vacancy in the office of Presi¬ 
dent, how does it happen that, as to the only agency 
through which the President can act, there is found 
a provision exactly contrariwise, that a vacancy in 
such agency shall continue, and that, for a time 
longer or shorter, there is no power to fill it, no 
matter what may be the emergency, or how much 
the public interests may suffer? In other words, 
to go according to this verbal reading, there may 
be times when the executive power is dormant and 
must remain dormant—times when the President 
cannot act himself, and cannot appoint any officer 
to act, and during which the execution of the laws 
is so far suspended. 


\ 


12 


Take, as an example, the case of a foreign min¬ 
ister at a distant court, charged with the most 
important duties, pressing for attention at a critical 
juncture, whose office becomes vacant by his death 
during the session of tlie Senate, but the vacancy 
is not known by the President until after the 
adjournment. Here is an instance of a vacancy 
whicli first occurs during the session, and which, 
upon this construction, cannot be filled in the recess. 

Take another example—the death of a head of 
department just on the eve of the adjournment of 
the Senate, without time for a new nomination—or 
the rejection of the nominee followed by an adjourn¬ 
ment. Is the President to be left during all the 
recess to carry on the government without the 
very aid contemplated by the Constitution? 

I might multiply cases to show the consequences 
to which the verbal construction leads, but I prefer 
to rest the question upon higher grounds. 

The true theory of the Constitution in this par¬ 
ticular seems to me to be this: that as to the 
Executive power, it is always to be in action, or 
in capacity for action; and that, to meet this neces¬ 
sity, there is a provision against a vacancy in the 
chief executive office, and against vacancies in all 
the subordinate offices, and that, at all times, there 
is a power to fill such vacancies. It is the Presi- 


13 


dent whose duty it is to see that the vacancy is 
filled. If the Senate is in session, they must 
assent to his nomination. If the Senate is not in 
session, the President fills the vacancy alone. All 
that is to be looked to is that there is a vacancy, 
no matter when it first occurred; and there must 
be a power to fill it. If it should have been filled 
whilst the Senate was in session, but was not then 
filled, that omission is no excuse for longer delay, 
for the public exigency which requires the officer 
may be as cogent, and more cogent, during the re¬ 
cess than during the session. I repeat it, wherever 
there is a vacancy there is a power to fill it. This 
power is in the President, with the assent of the 
Senate whilst that body is in session, and in the 
President alone when the Senate is not in session. 
There is no reason upon which the power to fill a 
vacancy can be limited by the state of things when 
it first occurred. On the contrary, the only inquiry 
is as to the state of things when it is filled. For 
instance, take the case of a vacancy which does 
first occur during a recess but is not filled when 
the session begins. If the verbal construction is 
sound, such a vacancy may be filled by the Presi¬ 
dent without the consent of the Senate whilst the 
Senate is in session; but no one maintains that 
position. 


14 


All admit that whenever there is a vacancy 
existing during the session, whether it first occurred 
in the recess or after the session began, the power 
to fill requires the concurrent action of the Presi¬ 
dent and Senate. It seems a necessary corollary 
to this, that where the vacancy exists in the recess, 
whether it first occurred in the recess or in the 
preceding session, the power to fill is in the Presi¬ 
dent alone. If, during the recess, the power is 
not in the President, it is nowhere, and there is a 
time when for a season the President is required 
to see that the laws are executed, and yet denied 
the very means provided for their execution. 

It is argued by those who deny this power to 
the President, that to allow it would disappoint 
the clear intent to give the Senate a participation 
in appointments to office. It is said that if the 
President can by his own act fill a vacancy which 
occurred during the session, he may, if so disposed, 
wholly omit to nominate an officer during the 
session, and leave all such vacancies open, and then 
fill them in the recess. Undoubtedly the President 
may do all that, and may intentionally abuse his 
power. 

The answer to this objection is obvious. In the 
first place, it may be said that arguments against 
the existence of a power founded on its possible 


15 


abuse are not satisfactory. If they were, then an 
objection against any control by the Senate over 
the President’s appointments would be equally 
cogent, for we may imagine that the Senate might 
refuse to consent to' every appointment made by 
the President, or to any appropriation to pay the 
salaries of officers, and thus leave the Executive 
without power to execute the laws. 

In the second place, if this argument founded 
on the possible abuse of a power is sound, then it 
may equally well be urged against the power of 
the President to make removals; for it may be 
imagined that, after the adjournment of the Senate, 
the President in the recess may remove every 
officer, civil and military, whose tenure of office is 
not during good behavior, and thus create vacancies 
in the recess , all to be filled by his own appointment. 
As these appointments are to continue until the 
end of the next session of the Senate, the Presi¬ 
dent might omit to make any nominations to the 
Senate, and then, in the ensuing recess, reappoint 
the same or other officers, and thus throughout his 
term of office defeat entirely any participation on 
the part of the Senate. 

I take it for granted that this unlimited power 
of removal belongs to the President, though I am 
quite well aware that some are still found to deny 




16 


it, and to reiterate arguments used without avail 
nearly eighty years ago, and to keep open a ques¬ 
tion settled by usage from the commencement of 
the government. 

This very power of removal comes, with signal 
force, in aid of the power of appointment. If the 
President can make a vacancy at all times, he must 
have the correlative power to fill the vacancy at all 
times. To avoid the mischief of a bad officer, he 
has at all times the power to create a vacancy; but 
it may be as great, perhaps a greater mischief to 
have a vacant office, or no officer at all, than to have 
a bad or inefficient officer. Why, then, allow him 
at all times the power to correct the mischief of a 
bad officer by a removal, and deny him the power 
at all times to correct the mischief of a vacancy by 
an appointment! 

The argument against the power of the President 
to fill a vacancy in the recess which began in the 
session, founded on a supposed intent to guard from 
usurpation by the President the proper authority 
of the Senate, amounts to nothing when we con¬ 
sider how thoroughly this may be done under the 
power of removal; for what is the difference be¬ 
tween a vacancy which began in the session or one 
caused in the recess by the act of the President! 
And if by the power of removal all the appoint- 


17 


ments may be usurped by the President, wliy look 
for guards in only one particular, and such a guard 
as creates, perhaps, a greater mischief than it pre¬ 
vents; for it seems a greater evil to be without offi¬ 
cers altogether than to have officers who hold only 
by the temporary appointment of the President. 
I say by the temporary* appointment of the Pres¬ 
ident; for, in strict language, the President cannot 
invest any officer with a full title to the office 
without the concurrence of the Senate. Whether 
the President appoints in the session or in the 
recess, he cannot and does not Jill the office without 
the concurrence of the Senate. He may fill the 
vacancy in the recess, but only by an appointment 
which lasts until the end of the next session. For 
instance, in filling a vacancy in the office of judge, 
whose tenure is, in effect, for life, his appointee 
can only hold for a fraction of time. So, too, of a 
marshal, whose regular term is four years—the 
officer appointed to fill the vacancy can scarcely 
hold for an entire year. Here, then, is the safe 
and only guard which protects the just rights of 
the Senate—the express provision that an appoint¬ 
ment made in the recess shall only extend until 
the end of the next session of the Senate. This 
protection applies equally to all appointments in 
the recess, whether to fill vacancies then first 


18 


occurring or that first occurred during the session. 
It is an ample provision to secure the Senate from 
everything except an abuse by the President of 
of his own constitutional powers of removal and 
of filling vacancies, by so exercising them as inten¬ 
tionally to frustrate the intervention of the Senate. 

We must not forget tha,t this power of appoint¬ 
ment to office is essentially an executive function. 
It belongs essentially to the executive department 
rather than to the legislative or judicial If no 
provision on the subject had been made by the 
Constitution, it would have been held appurtenant 
to the President as the head of the executive 
department specially charged with the execution 
of the laws. 

Hence his power at all times to vacate offices 
and to fill vacancies. He can by his own act do 
everything but give full title to his appointees, and 
invest them with the right to hold during the 
official term. That he cannot do without the 
consent of the Senate; but such is his power over 
officers, that, after the Senate has consented to his 
nomination, or, in common parlance, has confirmed 
it, the nominee is not yet fully appointed or even 
entitled to the office, for it still remains with the 
President to give him a commission or to refuse it, 
as he may deem best; and without the commission 


19 


there is no appointment. This was held by the 
Supreme Court in Marbury vs. Madison; and 
when to that decision we add the doctrine recog¬ 
nized by the same court in ex parte Hennen , we 
see how fully the appointment and removal of 
officers is held to be a necessary incident of 
executive power. 

Finally, when I consider that the construction 
which denies the President the power to fill a 
vacancy in the recess, which first occurs in the 
sesion, extends to all such vacancies without excep¬ 
tion—as well to those not known until the recess 
as to those known before—to those occasioned 
altogether by the neglect or failure of the Senate 
to assent to a nomination, or to act upon a nomi¬ 
nation—to those where the fault is with the Senate 
as well as to those where the fault is with the 
President—I cannot escape the conviction that 
such a construction is unsound. 

I am accordingly of opinion that the President 
has full and independent power to fill vacancies in 
the recess of the Senate, without any limitation 
as to the time when they first occurred. 

I have the honor to be, 

Very respectfully, 

HENRY STANBERY, 
Attorney General. 




































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